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About Google Book Search Google's mission is to organize the world's information and to make it universally accessible and useful. Google Book Search helps readers discover the world's books while helping authors and publishers reach new audiences. You can search through the full text of this book on the web at |http : //books . google . com/ IliililfJIIIIlii 3 2044 103 267 365 WILLABDt Joaapb. BattxrsliMtlon In tha Aamricsa Colonia*. \tii'n ^S.^%M-^^'K->^\ J ^^H 1^ m '^'J^'jIH % ^v '■ ^f^^^B^^ w HARVARD LAW LIBRARY Received ^"^--^ K^^^uu -a o V«H ^ n i ^- ^^ . ■/ NATURALIZATION V AMERICAN COLONIES, WITH MOKE PARTICULAR REFERENCE TO MASSACHUSETTS. A Papbr read before the Massachusetts Historical Societt, at the July Meetino, 1869. BY JOSEPH WILLARD. BOSTON: PRINTED BY JOHN WILSON AND SON, 22, School. Street. 1859. , ^ * s . ^/^*' ff€^ J TRACTATE. The hostility of ancient nations to aliens, connected more or less closely with the sentiment of race and of patriotism, and made more intense by diversity of language, continued with few Exceptions through the various periods of their his- tory, and passed into modern Europe in its several centuries, uninfluenced to any extent by the progress of civilization and refinement, and the precepts of Christianity. At the present day, though this hostility may be considered as at an end, a distinctive feeling between citizens of the same country and aliens continues, and will never be eradi- cated while men are separated into distinct communities. In the following tractate, it is not proposed to discuss the doctrines embraced in the change or transfer of allegiance, or to consider any real or supposed modifications of what have been regarded as the legitimate results of those doc- trines, but, only as a matter pertaining to our own history, to give a summary of the English statutes touching naturaliza- tion, followed by references to some of the Colonial charters and laws, especially to the exercise of jurisdiction in the Province of Massachusetts Bay, and in the Commonwealth both before and after the adoption of the Constitution of the United States. In no country of Europe has the exclusion of foreigners been more strictly enforced than in England ; so that, until a recent period, no one could become a British subject except by a special Act of Parliament.* In addition to the reasons given above, the pride of the Anglo-Saxon race, which hardly permits an Englishman to look on his Continental neighbor as an equal, would lead him to regard with dread any encroach- ment upon Q. population that had become homogeneous in the progress of centuries, — a dread that would not be diminished by the narrow channel that divides him from other races. But, while she guarded the sea-girt isle with this extreme jealousy, she was, as will be seen in the context, more liberal towards her Colonies after they began to acquire assured strength ; that is to say, more liberal as regarded foreign Protestants, while wholly excluding the Roman Catholic from every privilege of a subject. The first relaxation of the ancient restriction took place in 1708, under statute 7 Anne, chap. 5, entitled " An act for NATURALIZING FOREIGN PROTESTANTS." The preamble states the plain proposition, that "the increase of a people is a means of advancing the wealth and strength of a nation ; " and adds, that "many strangers of the Protestant or Reformed religion, out of a due consideration of the happy constitution of the government of this realm, would be induced to trans- port themselves and their estates into this kingdom, if they might be made partakers of the advantages and privileges which the natural-bom subjects thereof do enjoy." It is then enacted, that all persons taking the oaths, and making * By the statute of 7 and 8 Victoria, chap. 66, a resident alien subject of a friendly State, or one who shall hereafter come to reside in any part of the United Kingdom with intent to settle therein, desirous of being naturalized, is required to set forth, in a memorial to one of the principal Secretaries of State, the facts concerning his age, profession, or occupation, length of residence, &c. If the secretary, after examination, is satisfied of the truth of the memorial, he may issue a certificate, granting to the alien, on his taking the prescribed oaths, eUl the rigkts of a ncUurcU-bom subject, except that of being a member of Parliament or of the Privy Council, and any other excep- tions especially named in the certificate; which certificate must be enrolled in the Court of Chancery. This statute did not extend to the Colonies. See statute 10 and 11 Victoria, chap. 88, enacted in 1847, cited post. and subscribing the declaration appointed by statute 6 Anne, chap. 23, and having received the sacrament of the Lord's Supper in some Protestant congregation within three months, shall be deemed natural-bom subjects. This law did not extend to the Colonies, and did not find favor at home. Parliament soon relapsed into the old strin- gent doctrine of the common law, and in 1711, after an experiment of three years, repealed the statute of 7 Anne, because, according to the preamble, " divers mischiefs and inconveniences have been found by experience to follow from the same, to the discouragement of the natural-bom subjects of this kingdom, and to the detriment of the trade and wealth thereof." The "discouragement and detriment" may have been more in seeming than in fact ; but so it was, that this exclusion of foreigners remained as of old in the mother country until the present reign. But there were other statutes designed for the benefit of the Colonies, where it was supposed the " discouragement and detriment " complained of at home would not exist. In several of the Colonies, foreign Protestants had become numerous, and their numbers were rapidly increasing ; and thus it had become a very desirable object to attach them to their new homes, by giving them an interest in the soil, and admitting them to full civil and political privileges, so that agriculture and trade and general wealth might be developed. To this end, in 1740, the statute 13 George II., chap. 7, was passed, with a preamble similar to that of 7 Anne : viz., that " the increase of a people is a means of advancing the wealth and strength of any nation or country ; and that many for- eigners and strangers, from the lenity of our government, the purity of our religion, the benefit of our laws, the ad* vantages of our trade, and the security of our property, might be induced to come and settle in some of his majesty's Colonies in America, if they were made partakers of the advantages and privileges which the natural-born subjects of this realm do enjoy." This statute admitted all Protestant foreigners to the privi^ leges of natnral-bom subjects, on a residence of seven, years in any one of the Colonies, without an absence exceeding two months at any one time, taking the oaths of allegiance^ abjuration, &c., and receiving the sacrament, &c. The oaths and declarations — with exceptions in favor of Quakers and Jews — were required to be taken before a judge in open court, between nine and twelve o'clock in the forenoon ; and to be entered in the same court, and also in the secretary's office of the Colony. The judge was required to make a due and proper entry of the oaths, &c., " in a book to be kept for that purpose in said court; " and the secretary was required, to make the like entry in a like book to be kept for the same purpose in his office, upon notification by the judge. .A certificate, under the Colonial seal, was full proof of naturalization. The secretary was directed to transmit to the office of the Commissioners for Trade and Plantations, annually, the names of all who had taken the benefit of the act. Naturalized persons could not be of the Privy Council or of Parliament ; or hold any office or place of trust, civil or mili- tary, in Great Britain or Ireland ; or hold real estate within the same by grant from the crown.* In 1747, by statute 20 George II., chap. 44, the benefits of the statute of 1740 were extended to the " Moravian Bre- thren, and other foreign Protestants, not Quakers, who con- scientiously scruple the taking of an oath ; many of whom are settled in the Colonies." They are described as a "sober, quiet, and industrious people ; " and it is added, that " many others of the like persuasion are desirous to transport them- selves thither." * This clause in the statute was repealed by statute 18 George HI., chap. 83, so far as concerned holding office or taking crown grants of land, except within the kingdom of Great Britain and Ireland. The repeal extends to the subsequent statutes recited below. The statute 29 George II., chap. 5, enacted in 1756, recites that many foreign Protestants have been induced by the statute of 1740 to settle in some of the Colonies, "particularly in the Provinces of Maryland and Pennsylvania ; the natural- bom subjects of which last-mentioned Province do in great part consist of the people called Quakers, whose backward- ness in their own defence exposes themselves and that part of America to imminent danger." On this account, provision is made for raising a regiment of four battalions, of one thousand men each, into which naturalized foreigners may be enhsted; and a certain number of foreigners who have served abroad as officers or engineers may be appointed to serve in the regiment, on taking the oaths, &c., as prescribed in the former statutes. The colonel of the regiment must be " a natural-bom subject, and not any person naturalized or made a denizen." In 1761, statute 2 George III., chap. 25, these officers were duly remembered. They had raised " a great number of men, and trained them to discipline as soldiers." Several of the officers had " purchased estates in the Colonies, and had given the strongest assurances of their attachment and fidelity to the British Government." On these grounds, and to induce others, then or thereafter settled in America, "to engage in his majesty's service," it provided "that all such foreign Protestants, as well officers as soldiers, who have served or shall hereafter serve in the Royal-American regiment,* or as engineers in America, for the space of two years, and shall take and subscribe the oaths, and make, re- peat, and subscribe the declaration, &c., . . . shall be deemed ... his majesty's natural-bora subjects of this kingdom." ♦ General Gates, a native of England, was a miyor in the Royal Americans. At an earlier period in the French War, he was captain of a New- York Independent Company which served in the campaign of Braddock. He was severely wounded in the battle iu which Braddock was defeated. In 1772, he emigrated to Vurginia, and purchased an estate in Berkeley County. 8 The foregoing enumeration embraces all the English sta- tute provisions in relation to naturalization in the Colonies preceding the Revolution. They are suflSciently liberal in term of residence required ; and probably many foreign Pro- testants, in several of the Colonies, sought for the benefits opened by these statutes. But in Massachusetts, where the population was well-nigh homogeneous and Puritan, it was otherwise. In the Court of Common Pleas for the County of SufiFolk, not one instance of naturalization is to be found from 1740 to 1752. Whether there were any between 1752 and the Revolution cannot be ascertained, as the records for the whole of that period are and have been missing from the oflSce ever since the evacuation of Boston, in March, 1776.* The records of the Superior Court of the Province for all the Counties are kept in the oflSce of the Clerk of the Supreme Court, in Boston ; and it is remarkable, as the result of a careful search which I directed to be made from 1740 up to the Revolution, that only four persons were naturalized in that court.f No book, such as the judge was required to keep, is to be found ; and there is none in the office of the Secretary of State. The only persons naturalized under these laws were Nicholas Budd, Aaron Lopez, Emanuel Peraro, and Theodore Dehon. The following is an abstract of the record in each case : — * At one time, it was thought that they were in Halifax, N.S.; and an early effort was made to find them, but in vain. The late William C. Aylwin, Esq., when clerk, met with no better success. Thinking, possibly, that they might have been taken to England, I applied to my friend Bev. Joseph Hunter, of London, a learned antiquary, and intimately acquainted with the public archives ; but he had never seen or heard of the missing volumes. t The reason may have been, that the petitioner for naturalization must have received the sacrament in a Protestant reformed congregation within three months previous. This would have required him either to become a member of the Episcopal Church, or else to join a Congregational, Presbyterian, or other dissenting church, — all of which were hedged in with creeds. Superior Court of JudiccUure^ from 1741 to 1780. — Naturalizations. Nicholas Budd . . . Nov. 17, 1741 . . . Page 135 Aaron Lopez .... Oct. 15, 1762 .. . „ 450 Emanuel Peraro . . . Sept. 8, 1766 ... ,,110 Theodore Dehon . . . March 23, 1767 ... „ 212 Upon reading the petition of Nicholas Budd, a native of Norway, in the kingdom of Denmark, but now resident in Boston, showing that bj evidences, and a certificate herewith presented, he, conceiving him- self to be duly qualified for and entitled to naturalization, according to an Act made in the thirteenth year of his present majesty's reign, and thereupon praying that he may be naturalized according to said Act of Parliament, — Ordered^ That the prayer of the petition be granted ; it appearing to the court that the said Nicholas Budd has been an inhabitant of his majesty's dominions for more than seven years last past, and has within three months last past received the sacrament in a Protestant reformed congregation in this town of Boston. The oaths appointed to be taken instead of the oaths of alle- giance and supremacy were administered to him by order of court, and subscribed by him ; and he made and subscribed the declaration according to the direction of the said Act of Parliament. Aaron Lopez, of Swansey, in the county of Bristol, merchant, a Jew, formerly residing at Newport, in the Colony of Rhode Island, &c, — to wit, at said Newport from Oct 13, 1752, to Sept. 10, 1762, and at said Swansey since, — took and subscribed the oaths, &c., in presence of the chief justice and other three justices, between the hours of nine and twelve in the morning.* Emanuel Peraro, a Portuguese, now of Boston, mariner, where he has resided for more than seven years, and not been absent for more than two months, proof made thereof, and of his having received the sacrament according to the usage of the Church of England, was admitted, and took and subscribed the oaths before the chief justice and other justices, between the hours aforesaid. * Lopez was a Jew. In 1777, with several other Jewish families, he removed to Leicester, in the Province of Massachusetts Bay, and was there extensively engan^d in trade. He was a man of intelligence and industry, and became thrifty according to the wont of his people. See Washburn's History of Leicester for some further account of Lopez and other Jewish residents in that town. 2 10 Theodore Dehon, now of Boston, bora out of the legiance of his majesty the King of Great Britain, resided in said Bbston more than seven years, and not been absent, &c. ; that he is a Protestant, and of the communion of the Church of England. And said Theo- dore, on certificate of his having received the sacrament of the Lord's Supper according to the usage of the church aforesaid, was admit- ted, and took and subscribed the oaths before the chief justice and two other justices, between the hours, &c. Turning from the English statutes, it is next to be ascer- tained whether the Colonial charters clothed the local gov- ernment vsrith authority to create British subjects within their respective Colonies. By the Massachusetts-Colony Charter, the governor, assist- ants, and freemen had power to choose others to be free of the company, and to transport " so many of our loving subjects, or any other strangers that will become our lov- ing subjects and live under our allegiance, as shall willingly accompany them in the same voyages and ' plantation.' " Under this provision of the charter, there would seem to be no diflSculty in supposing that they did or might admit foreign Protestants to become freemen. If any such strayed this way, men of orthodox lives and conversation, according to the standard, and were admitted to the church, as they might be, what prevented their being made free, on petition to that end ? By joining the church, the door was open which gave a view of civil and political privileges in the near distance. No one could be admitted to freedom, unless he was a mem- ber of one of the churches ; and, being a member, admission was almost of course, if applied for.* The colonists were still a " company," an incorporated company, with power to * None could be compelled to become freemen ; and, after a while, it came to be a sore evil that many church members refrained from applying for admission. They did so that they might not be called to public service as constables, jurors, selectmen, &c. In order to meet their case, a fine was imposed on all such who refused service. — Colonial Ijxm^ 1647. 11 admit or refuse admission as they pleased; in other words, to select associates according to their pleasure and their sympathies, within the prescribed limits. These would then, in the language of the charter, " become our loving subjects, and live under our allegiance." Of course, they would only be subjects within the Colony, with no power to exercise civil and political functions in England. It may be that the case never occurred ; but, if it did occur, it is not seen how any other result could have been reached. In the Province Charter, there was no express provision authorizing the naturalization of foreigners ; and none can be gathered by implication. In New Hampshire, there is nothing on the subject, either in the commission of Charles II. to President Cutts, or in the commission of 6 George III. to Governor Wentworth. In Rhode Island, the charter of 15 Charles II. authorized the Assembly to choose persons to be free of the company and body politic, and to admit them into the same. The charter made no distinction between English subjects and others. So, in Connecticut, the charter of Charles II. allowed the General Assembly to choose, &c., persons to be free of the body politic, and to admit them into the same. In New York, by the letters-j^tent of 16 Charles II. to the Duke of York, the duke was allowed to bring into the Colony not only subjects of the realm, "but any other strangers who would become subjects." And, when the Province was surrendered to the crown, it was stipulated that "all people should continue free denizens" within the Colony ; and " that any people might come from the Nether- lands, and plant " in the Province. In New Jersey, in 1664, under the government of Lord Berkeley and Sir George Carteret, all who wished were admit- ted to become freemen, and so subjects, on taking the oaths of allegiance, &c. Being absolute lords-proprietors, they 12 were not limited in their authority, as were the charter governments. In Pennsylvania, by the " laws agreed upon in England " in 1683, '^ every inhabitant purchasing a hundred acres ; every person who has paid his passage, and taken a hundred acres ; every person that hath been a servant or bondman, and ' is free by his service,' and has taken fifty acres ; ' and every inhabitant, artificer, or other resident in the Province, that pays scot or lot* to the governor,' — shall be deemed a freeman, and capable of electing or being elected representa- tive or councillor." f In Maryland, Lord Baltimore, by the charter of 8 Charles I., was constituted " the true and absolute lord and proprietary," and of course, as such, had the power to authorize his Assembly to grant process of naturalization ; which power, as will be seen in the sequel, was exercised. In North Carolina, no such power was reserved in the charter of Charles II. The next inquiry is. Did any of the Colonies, in their local Legislatures, establish laws on the subject, or lay claim of right so to do ? Mr. Dane, the learned and generally very accurate commentator on American law, states that 'Hhere were no naturalizations in the Colonies, before the Revolution, but such as took place under the Acts of the British Par- liament." | The remarks before made on the charters show that he is in error ; and this will appear beyond question by * Scot and lot is defined to be '* parish payments." t Colonial Records, vols, i., xxix., xxx. X Abridgment of American Law, vol. iv. p. 708. Mr. Dane also states, p. 709, that *Hhe Germans who came from Germany, and settled at Waldoborough about A.D. 1760, were and remained aliens." Perhaps this was so: bnt then it must have been of their own choice; for, so far as they were Protestants, — and most if not all of them were of that faith, -^ they might have been naturalized under the statute of 18 George II., chap. 7, passed in 1740. 13 the following reference to the laws of several of the Colonies. In 1683, "to quiet the minds of his majesty's subjects of foreign birth," the Legislature of New York passed an Act, allowing all persons professing Christianity, now or hereafter becoming inhabitants, to be naturalized on taking the oath of allegiance. This phrase, " all persons professing Christian- ity," is found in no other Colonial law, and doubtless was introduced because the Duke of York was a Roman Catholic ; and the king was well known to be in full sympathy with his brother, though outwardly conforming to the Church of England. Again: by a law of 1715, 1 George I., foreigners who had become inhabitants after 1683, who had purchased estates and conveyed them away, or who had died seized thereof, were deemed to be naturalized ;' and all Protestant foreigners, inhabitants in 1715, were to be deemed natural subjects on taking the prescribed oaths within nine months from the passage of the Act.* In New Jersey, as has been seen. Lord Berkeley and Sir George Carteret, in 1664, among their " Grants and Conces- sions," allowed all who would become subjects to be admitted to become freemen on taking the odj^ths of allegiance ; and authorized the Assembly to pass an Act "to give to all strangers ... a naturalization, . . . and dl such freedoms and privileges within the Province as to his majesty's sub- jeats of right belong." f And in Pennsylvania, as has been seen, by the laws agreed upon in England in 1683, the most ample power was given in the premises. So also in Maryland, under the successors of Sir George Calvert, — Lord Baltimore : " The true and absolute lords ♦ Laws of New York, Livingston and Smith's edition, 1762. 2 vols, folio, t " Grants and Concessions," pp. 13, 14, 17. Folio. 14 and proprietaries." The same power was vested in the Assembly.* In Virginia, there was a law of 1671, under which " any strangers" — as the expression was — might be naturalized; and, by virtue of this law, many were naturalized by special Acts of the Assembly. This continued until 1680, when Lord Culpepper brought over, " under the great seal of Eng- landy^'a naturalization law, which was introduced, "and passed the Assembly unanimously." In October, 1705, another naturalization law was passed. The latter law at least, if not the previous ones, was confined to foreign Protestants ; they taking the usual oaths, and the oath of abjuration of " the pretended Prince of Wales." In 1738, chap. 12, the General Assembly authorized the Governor to grant letters of naturalization to any aliens who should settle on the Roanoke, — the southern boundary of the Colony; they taking the oaths, &c. In Massachusetts, as before stated, there was neither ex- press nor implied authority in the General Court to pass laws on the subject, nor by special Acts to admit foreigners to the privileges of British subjects. The statute of Anne, 1708, repealed in 1711, had no refer- ence to the Colonies ; and there was no subsequent English statute, until that of 13 George II. in 1740, by which for- eigners residing in Massachusetts could become British sub- jects. Indeed, it was so from the revocation of the Colony Charter until 1740. Meanwhile, many foreign Protestants had settled in Massachusetts, — Huguenots driven from France on the revocation of the edict of Nantes, with Germans and others who had emigrated to this country for the " enlargement of their outward estates." These persons were subjected to the * The law itself has not been found on the old Statute-book. It may have been overlooked. But that the power was freely exercised, appears from statute 1704, chap. 4, regulating for the future the fees which the Clerk of the Assembly should receive from persons naturalized by Acts of the Assembly. 15 payment of taxes, and sometimes were called to exercise municipal office ; but, in all other respects, they were de- barred from the rights and privileges of natural-bom subjects. They were not numerous in the Puritan Commonwealth, com- pared with some of the other Colonies ; but numerous enough to be considered on that ground, as well as for their general good character and quiet demeanor. Possibly Massachusetts thought, that if Maryland, Vir- ginia, and other sister Colonies, permitted resident foreigners to become British subjects within their own borders, she might do the same. Thus circumstanced, several French Protestants, and one from Germany, presented the following petition to the Gene- ral Court, at the February Session, 1731, N.S. : — " To His Excellency Jonathan Belcher^ Esq.^ Governor and Commander- in-chief in and over his Majesty's Province of Massachusetts Bay ; to the HonoraMe the Council and the House of Representatives in General Court assembled. "The petition of the persons hereto subscribed showeth that the petitioners, for the most part, were forced to leave their native country of France on account of the Protestant religion, in which they had been bred up and professed, and for which some of the petitioners have been greatly persecuted and distressed. "And, farther, the petitioners most humbly remonstrate to your Excellency and to this Great and General Assembly, that the most part of them have, for almost the space of forty years or upwards (during which time they have chieffly resided in this countr)'), behaved them- selves justly to their neighbours, and, in their respective callings, with unshaken fidelity . towards the gou vernment here, and the crown of Great Britain ; and have been allwajs subjected as well as to pay rates and taxes, as also to bear offices of constable, &c., which several of them have sustained and executed with great faithfulness in their respective dutys : so that they hope, by the favour of this Great and General Court (which is well known at all times to act with great equity, and to relieve, where they can, the distressed), that as they have been always subject to do dijitys, so they may be intituled to all the privileges of a denisen, or natural-born subject, of his majesty's. 16 so far as is consistent with the power and justice of this Great and General Court ; it being what hath been generally practiced by most nations of Europe in favour of the French Protestant refugees, but more particularly by the crown of Great Britain and the dependent Colo- nys, as the petitioners can prove by many instances. Therefore, upon the whole, the petitioners do humbly pray an order of this Great and General Court to confer upon them the rights and privileges of denisens, or free-born subjects, of the King of Great Britain ; or be otherwise relieved, notwithstanding any law, usage, or custom, to the contrary ; or that they may be farther heard by the Council in tlie premises. They say relieved as this Great and General Court shall judge meet; and, as in duty bound, your petitioners shall ever pray, &c. ^7^re^ J^ c^Ccre^. aS)a^m0^c ^J2CCC^^ ^-^^:^^. ^^cT bW na^T/r 17 "In Council, Feb. 25, 1730. — Read, and ordered that the prayer of the petition be so far granted as that the petitioners, together with all other foreign Protestant inhabitants of this Province, shall, within this Province, hold and enjoy all the privileges and immunities of his majesty's natural-bom subjects; and that they have leave to bring in a bill accordingly. " Sent down for concurrence, "J. WiLLARD, Secretary. <